Enduring Power of Attorney in Alberta: What the Act Asks For

A 61-year-old retired lab technician in Medicine Hat has never married and has no children. For two decades the person she leans on has been a friend from her church choir, the one who drives her to the city for appointments and who has a key to her house. One January evening, at the friend's dining-room table after rehearsal, she brought a draft of her enduring power of attorney and asked the question that had been sitting with her for weeks. "If I write that you take over when I can't manage on my own," she said, "who gets to decide that I can't?"

It is a good question, and Alberta's Powers of Attorney Act has a direct answer to it. This guide follows the parts of that Act that shape most everyday decisions: what makes a power of attorney enduring, who can witness it, how a signing over video can work, how a "springing" document is switched on, and how it ends. Readers weighing Alberta against the rest of the country can turn to our national overview of property powers of attorney.

What turns a power of attorney into an enduring one #

An ordinary power of attorney is generally designed for a period when you can still keep an eye on it. An enduring one is meant to keep working, or to start working, when you cannot. Section 2(1) generally treats a power of attorney as enduring when it meets a short list of conditions:^[NaN]

• the donor (the person giving the authority) is an adult when signing it;
• it is in writing and dated;
• the donor signs it in the presence of a witness, or, if physically unable to sign, another person signs for the donor at the donor's direction with both the donor and the witness present;
• the witness signs in the donor's presence;
• it contains a statement that it either continues despite any mental incapacity or infirmity that arises after it is signed, or takes effect on that incapacity or infirmity.

That last element is the hinge. A document without such a statement may not do what the woman and her friend expect of it.

Your attorney has an age requirement of their own. Under s. 2(2), a person generally cannot be the attorney under an enduring power of attorney unless they are an adult on the date the donor signs.^[NaN]

One witness, and who that cannot be #

Alberta's statutory minimum is a single witness. The donor signs before a witness, and the witness signs in front of the donor.^[NaN] Some people choose to involve more than one, but the Act asks for at least one.

The bigger question is who qualifies. Section 2(4) names five kinds of people who generally may not witness:^[NaN]

1. anyone designated in the document as the attorney;
2. the spouse or adult interdependent partner of that attorney;
3. the donor's own spouse or adult interdependent partner;
4. a person who signs on the donor's behalf;
5. the spouse or adult interdependent partner of that person.

For the woman in Medicine Hat, her friend is out as the named attorney, and so is the friend's husband. A neighbour, a fellow choir member with no role in the document, or a colleague from her working years could fit, as long as none of the five descriptions applies.

Signing by video with a lawyer involved #

Section 2.1 makes room for remote signing, within limits. People connected by an electronic method that lets them see, hear and communicate with each other in real time are deemed to be in each other's presence for the signing and witnessing steps.^[NaN] The catch, in s. 2.1(2), is that this only applies if a lawyer who is an active member under the Legal Profession Act is giving the donor legal advice and services about making, signing and witnessing the enduring power of attorney.^[NaN] Without that lawyer, the ordinary in-person rule generally governs.

A springing document and the person who flips the switch #

Many donors prefer a document that waits. Section 5(1) allows an enduring power of attorney to come into effect at a stated future time or when a stated contingency happens, including the donor's mental incapacity or infirmity.^[NaN]

This is where the dining-room question gets its answer. Under s. 5(2), the document may name one or more people whose written declaration is treated as conclusive proof that the contingency has happened.^[NaN] Section 5(3) adds that the person named can be the attorney.^[NaN] So the woman could name her friend as both attorney and declarant, or she could name someone else, such as a relative in another province, to make the declaration.

If no one is named, or the named person dies before the document takes effect or is unable to decide, s. 5(4) supplies a fallback for incapacity-based triggers: the contingency is generally treated as having happened when two medical practitioners declare so in writing.^[NaN] For a closer look at choosing between a document that starts now and one that waits, see our article on enduring and springing powers of attorney.

Questions to settle before the signing #

The statute gives you choices. Making them before the pen comes out tends to avoid a second appointment. A short list that families in Alberta often work through:

• Now or later? Decide whether the authority starts on signing or waits for a contingency.
• Who declares? If it waits, decide who will confirm the contingency, and whether that should be the attorney or someone at arm's length.
• Who witnesses? Line up a witness who sits outside the five excluded groups.
• In person or remote? If remote signing matters to you, plan around the lawyer requirement in s. 2.1.^[NaN]
• Who else needs a copy? Your attorney will need access to the original when the time comes.

How an Alberta enduring power of attorney ends #

Section 13(1) lists the ways an enduring power of attorney terminates, other than an irrevocable one.^[NaN] In plain terms, it generally ends:

• if you revoke it in writing at a time when you are mentally capable of understanding the nature and effect of doing so;
• if the attorney renounces the appointment and gives you notice;
• when a court grants a termination order;
• when a trusteeship order is granted for you;
• on your death or the attorney's death;
• when a trusteeship order is granted for the attorney.

The first item is the one most donors will use. If your circumstances change, a written revocation made while you have capacity generally does the job.^[NaN] Our general piece on revoking a power of attorney looks at revocation across Canada more generally.

Next steps for an Alberta donor #

An enduring power of attorney deals with your finances and property. Personal and health decisions in Alberta are handled through a separate document, covered in our guide to personal directives in Alberta. Your estate after death is handled under your will, and the Alberta will guide and our Alberta executor guide explain how that side works. The Alberta will hub collects the province-specific pages.

The woman in Medicine Hat went home that night with her answer, a name for her declarant and a plan to ask a neighbour to witness. If your own planning still needs a will to sit alongside the power of attorney, start yours with It's Simple Will.